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Sergeant v Nigro [2019] NZDC 1060

Published 29 May 2019

Tenancy Tribunal appeal — squatter — reverse annuity mortgage — Residential Tenancies Act 1986 ss 2, 65, 85, 117 — Property (Relationships) Act 1976. The appellant appealed a decision of the Tenancy Tribunal granting possession of the property to the respondents, as trustees of a family trust. The trustees cross-appealed seeking immediate possession or no more than five day's notice to vacate. The appellant had been in a long term de facto relationship with the deceased former owner of the property who, in 2001, signed an agreement under the Property (Relationships) Act designating the property as separate property, before placing it in a trust two years later. Following the former owner's death, the appellant continued to reside in the property, paying no rent nor related outgoings. However, the property was subject to a reverse annuity mortgage and the debt was due; the mortgagee having issued a demand for repayment. The appellant argued that the Tenancy Tribunal's decision should not stand because there was litigation before the High Court challenging the validity of the relationship property agreement. However the Tribunal determined the appellant had no right to possession as he was a squatter pursuant to s 65 of the Residential Tenancies Act. The Judge dismissed the appeal on the basis the Adjudicator was correct in finding s 65 applied. The Judge further noted that this was unaffected by the High Court proceedings, but that other remedies could be sought there. The trustees cross-appeal was allowed and an order made that the appellant must vacate the property within 10 days. No costs were awarded on the cross-appeal but costs on a 2B basis, were awarded to the trustees on the appeal. Judgment Date: 24 January 2019.

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